Jamaica Public Service Company Ltd v Meadows and Others

• Jurisdiction: Jamaica
• Judge: Panton P,McIntosh JA,Brooks JA
• Judgment Date: 16 January 2015
• Neutral Citation: JM 2015 CA 3
• Docket Number: CIVIL APPEAL NO 122/2012 CONSOLIDATED WITH SUPREME COURT CIVIL APPEAL NO 132/2012
• Court: Court of Appeal (Jamaica)
• Date: 16 January 2015

Between

Jamaica Public Service Company Limited

Appellant and 1st counter-respondent

and

Dennis Meadows

1st Respondent and counter-appellant

and

Betty – Ann Blaine

2nd Respondent and counter-appellant

and

Cyrus Rousseau

3rd Respondent and counter-appellant

and

The Office of Utilities Regulation

2nd Respondent on counter-appeal

and

The Attorney General

3rd Respondent on counter-appeal

Between

The Attorney General of Jamaica

Appellant

and

Dennis Meadows

1st Respondent

and

Betty – Ann Blaine

2nd Respondent

and

Cyrus Rousseau

3rd Respondent

[2015] JMCA Civ 1

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

CIVIL APPEAL NO 122/2012

CONSOLIDATED WITH SUPREME COURT CIVIL APPEAL NO 132/2012

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

INTERPRETATION - Licence - Electricity - Exclusivity - Whether regulation and condition of Licence precludes Minister's right to issue other Licences - Whether 'area' encompasses the entire island - Whether exclusivity of Licence inconsistent with its validity - Whether the Office of Utilities Regulation recommended inclusion of exclusivity claims in Licence - Costs - Electric Lighting Act, sections 3 and 4 - Jamaica Public Service All-Island Electricity Licence 2001

Michael Hylton QC and Sundiata Gibbs instructed by Hylton Powell for the appellant Jamaica Public Service Co Ltd

Hugh Wildman and Ms Barbara Hinds instructed by Marvalyn Taylor-Wright & Co for the respondents/counter-appellants Meadows, Blaine and Rousseau

Mrs Nicole Foster-Pusey QC, Solicitor-General and Ms Althea Jarrett instructed by the Director of State Proceedings for the Attorney General of Jamaica

Allan Wood QC and Mrs Daniella Gentles-Silvera instructed by Livingston Alexander and Levy for The Office of Utilities Regulation

Panton P

1 I have read, in draft, the reasons for judgment written by my brother Brooks JA. I fully agree with his reasoning and conclusion and have nothing to add.

McIntosh JA

2 I too have read the draft judgment of Brooks JA and agree with his reasoning and conclusions which have been set out so thoroughly and with such clarity that I am left with nothing useful to add.

Brooks JA

3 This is an appeal from the judgment of Sykes J, handed down on 30 July 2012. The learned judge ruled that the minister of government with responsibility for mining and energy was authorised to issue a licence to a single operator to supply electricity to consumers across the entire island. The learned judge decided, however, that the minister was in error when the minister designated the licence as being exclusive. He held that the grant prevented any other licence being granted for the 20 year duration of the licence issued. Despite the latter finding, the learned judge ruled that the licence issued was not invalid.

4 Neither the licensee, Jamaica Public Service Company Limited (JPS), nor the respondents, Mr Dennis Meadows, Mrs Betty Ann Blaine and Mr Cyrus Rousseau (the persons who had challenged the licence issued to JPS), is entirely happy with the learned judge's decision. Each side contends that the learned judge has misinterpreted the relevant legislation. They, however, do so for different reasons.

5 JPS, supported by the Attorney General of Jamaica, contends that the statute does not preclude the minister's issue of an exclusive licence. On the other hand, the respondents, who are, or represent, dissatisfied customers of JPS, not only say that there is no basis for exclusivity, but assert that the statute does not allow for an all-island licence. As a result, there is both an appeal by JPS and the Attorney General on the one hand, and, on the other, a counter appeal by the respondents, against the learned judge's decision.

6 A third issue raised by the respondents' counter appeal concerns a question of fact, namely, whether the utilities regulator, the Office of Utilities Regulation (OUR) had recommended the minister's grant of the exclusive licence. The learned judge found that it had not. The respondents contend that he was wrong to have so found.

7 Each issue may be dealt with separately, starting with the issue of the all-island licence, next with the exclusivity issue, and finally with the OUR's recommendation. It is first necessary, however, to set out the relevant provision of the legislation and the portions of the licence that have given rise to this dispute.

The relevant legislation

8 The main provision, about which the issues of interpretation turn, is section 3 of the Electric Lighting Act (ELA). It states:

‘3. The Minister may from time to time license any Local Authority as defined by this Act, or any company or person, to supply electricity under this Act for any public or private purposes within any area , subject to the following provisions —

• (a) the licence may make such regulations as to the limits within which, and the conditions under which, a supply of electricity is to be provided, and for enforcing the performance by the licensees of their duties in relation to such supply, and for the revocation of the licence where the licensees fail to perform such duties, and generally may contain such regulations and conditions as the Minister may think expedient .

• (b) where, in any area or part of an area in which any undertakers are authorized to supply electricity under any licence, the undertakers are not themselves the Local Authority, the licence may contain any provisions and restrictions for enabling the Local Authority, within whose jurisdiction such area or part of an area may be, to exercise any of the powers of the undertakers under this Act with respect to the breaking up of any street repairable by such Local Authority within such area or part of an area, and the alteration of the position of any pipes or wires being under such street, and not being the pipes or wires of the undertakers, on behalf and at the expense of the undertakers, and for limiting the powers and liabilities of the undertakers in relation thereto, which the Minister may think expedient.’ (Emphasis supplied)

9 The main question to be resolved in the appeals by JPS and the Attorney General is whether the regulations and conditions set out in the licence may, during its existence, fetter the Minister's, or a future Minister's, right to issue other licences. The counter appeal mainly concerns the question of whether the term ‘area’ could encompass the entire island.

The licence granted

10 The licence was granted on 30 March 2001. It was set out in several parts. Part 1 described the scope of the licence, including the geographical area to be covered by it. It said:

• ‘1. The Minister, in exercise of the powers conferred by section 3 of the Electric Lighting Act and having regard to the recommendations of the Office of Utilities Regulation (“the Office”) pursuant to section 4 of the Office of Utilities Regulation Act, 2000 hereby grants to Jamaica Public Service Company Limited (“the Licensee”) a licence authorising the Licensee to generate, transmit, distribute and supply electricity for public and private purposes within Jamaica subject to the conditions set out in Part II hereof (“the Conditions”) and as noted herein.

• 2. This Licence shall be cited as the All-Island Electric Licence 2001.’ (Emphasis supplied)

11 Condition 2 of the licence described the general conditions established by the licence. Condition 2 contained a number of paragraphs, but paragraphs 2, 3 and 4 may be conveniently quoted at this stage. They speak to the characteristics of exclusivity and the fact of the licence being for the whole island:

‘2. The Licensee is hereby granted the Licence, right and privilege (hereinafter called ‘this Licence’) to generate, transmit, distributed and supply electricity for public and private purposes in all parts of the Island of Jamaica , subject however, to the provisions of this Licence and to regulation as herein provided.

3. Subject to the provisions of this Licence the Licensee shall provide an adequate, safe and efficient service based on modern standards, to all parts of the Island of Jamaica at reasonable rates so as to meet the demands of the Island and to contribute to economic development.

4. The Licensee shall have the exclusive right to provide service within the framework of an All-Island Electric Licence and the All-Island Electrical System. The exclusive right specified herein shall be as follows:

• (a) In the first three years from the effective date of this Licence, the Licensee shall have the exclusive right to develop new generation capacity. Upon the expiry of this period the Licensee shall have the right together with other outside person(s) to compete for the right to develop new generation capacity.

• (b) The Licensee shall have the exclusive right to transmit, distribute and supply electricity throughout Jamaica for a period of 20 years.

Provided that no firm or corporation or the Government of Jamaica or other entity or person shall be prevented from providing a service for its or his own exclusive use.’ (Italics as in original, other emphasis supplied)

12 In 2007 the Minister extended that term for a further seven years. In 2011, following a re-structuring of JPS' ownership, the licence was amended to include, among other things, the 2007 extension of the term. The licence, thus amended, was ‘restated’. The terms set out above were retained in almost identical terms.

Whether the ELA precluded the grant of an all-island licence

13 In deciding that the ELA did not preclude the grant of an all-island licence, Sykes J noted that the ELA did not define the term ‘area’, nor did it divide the island into areas. He found that the ELA, although promulgated over 100 years ago, was ‘always speaking’, in that it had to consider modern...